Citation Nr: 0918109
Decision Date: 05/14/09 Archive Date: 05/21/09
DOCKET NO. 06-20 217 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for the cause of the
Veteran's death.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
K. McDonald, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1955 to
November 1957. The appellant is the Veteran's surviving
spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2005 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, Puerto Rico, which denied entitlement to the
benefit currently sought on appeal.
The record reflects a pattern of requesting and then
cancelling or failing to appear at no fewer than three
scheduled hearings before the local Decision Review Officer
at the RO. See VA correspondence to appellant dated in
November 2006, September 2006, & February 2006. Most
recently, a hearing was scheduled for December 2006, but on
the date of that hearing the appellant's appointed
representative submitted a written request that the hearing
be cancelled. The Board interprets the representative's
December 2006 written submission as a withdrawal of the
request for a local hearing, and as such, the Board will now
proceed with the appeal.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The appellant seeks service connection for the cause of the
Veteran's death. The Veteran's death certificate shows that
he died in March 2005 and lists the cause of death as sepsis
due to bilateral pneumonia. The appellant contends that the
Veteran died prematurely due to a heart condition caused by
"heavy medications" related to his service-connected
chronic low back condition and posttraumatic stress disorder
(PTSD). Notice of disagreement, January 2006. Service
connection was not in effect for any other disabilities at
the time of the Veteran's death, although he did receive
additional compensation based upon total unemployability of
the individual (TDIU). By way of history, the Board also
notes that while on active duty serving in Korea, the Veteran
was involved in a plane crash and was hospitalized for the
resulting cold exposure and the service-connected back injury
that occurred in the accident. See Service treatment
records.
However, prior to adjudicating the claim for service
connection for the cause of the Veteran's death, additional
notification and evidentiary development is required. See
38 C.F.R. § 19.9 (2008). Although the Board sincerely
regrets the delay, it is necessary to ensure that there is a
complete record upon which to decide the appellant's claim so
that she is afforded every possible consideration.
Specifically, the Board notes that the Veteran's death
certificate indicates three days of hospitalization
immediately prior to his death. As these medical records
relate directly to the appellant's claim, they must be
obtained prior to the Board's adjudication. Any additional
private treatment records from the year preceding the
Veteran's death should also be obtained. 38 U.S.C.A. § 5103A
(West 2002); 38 C.F.R. § 3.159(c) (2008).
Additionally, the Board is unable to make an accurate
assessment of the appellant's claims regarding the
relationship between medications taken in treatment for the
Veteran's service-connected disabilities and the cause of his
death. As such, a medical opinion should be sought from a
practitioner possessing the appropriate medical training and
knowledge on this matter. See 38 U.S.C.A. § 5103A(d) (West
2002); 38 C.F.R. § 3.159(c)(4) (2008).
Finally, in Hupp v. Nicholson, 21 Vet. App. 342 (2007), the
United States Court of Appeals for Veterans Claims (Court)
addressed VA's notice obligation in the context of a claim
for Dependency and Indemnity Compensation (DIC) benefits.
The Court held that, because the RO's adjudication of a DIC
claim hinges first on whether a veteran was service-connected
for any condition during his or her lifetime, the notice in
such a claim must include 1) a statement of the conditions
(if any) for which a veteran was service-connected at the
time of his or her death; 2) an explanation of the evidence
and information required to substantiate a DIC claim based on
a previously service-connected condition; and 3) an
explanation of the evidence and information required to
substantiate a DIC claim based on a condition not yet
service connected. Hupp, 21 Vet. App. at 352-53.
The Court also held that when a claimant's DIC application
and accompanying evidence expressly raises a specific issue,
or the evidence submitted in connection with an application
relates to a particular element of a claim, VA is required to
provide notice that informs the claimant of how to
substantiate the assertion advanced, and takes into account
the evidence submitted in connection with the application.
Id. at 353. Adequate notice has not been provided in this
case and corrective notice must be sent to the appellant.
Accordingly, the case is REMANDED for the following action:
1. Notify the appellant of the
information and evidence necessary to
substantiate her claims. The notice
should include (a) a statement of the
conditions for which the Veteran was
service-connected at the time of his
death; (b) an explanation of the
evidence and information required to
substantiate a DIC claim based on a
previously service-connected condition;
and (c) an explanation of the evidence
and information required to
substantiate a DIC claim based on a
condition not yet service-connected.
The notice letter should indicate which
portion of the evidence, if any, is to
be provided by the appellant and which
portion, if any, VA will attempt to
obtain on her behalf.
2. Contact the appellant to obtain
consent and authorization to release
terminal medical records from this
Veteran's hospital treatment in March
2005. Any additional private treatment
records from the year preceding the
Veteran's death should also be obtained
from any duly identified and authorized
medical treatment provider.
3. Any and all records obtained through
the above development efforts must be
associated with the claims file. If any
identified record is unavailable, the RO
should so specifically state, and the
documentation used in making that
determination should be set forth in the
claims file. All attempts to obtain
these records, including those which may
ultimately prove unsuccessful, must be
documented in the claims folder.
4. AFTER the above development is
completed, provide the Veteran's claims
file and a copy of this remand to an
appropriate physician in order to obtain
a specialized medical opinion. The
reviewing physician is specifically
requested to:
(a) Opine whether the Veteran's death
was the result of any disease or injury
incurred in or aggravated by military
service, and
(b) Opine whether the Veteran's death was
due to or the result of his service-
connected lumbar spine disability or
PTSD, or any condition not yet service-
connected that is claimed by the
appellant, to include whether the cause
of the Veteran's death is medically
attributable to any medications that he
took to treat those disabilities.
5. Thereafter, readjudicate the issue on
appeal. If the determination remains
unfavorable to the appellant, she and her
representative must be furnished a
Supplemental Statement of the Case which
addresses all evidence associated with
the claims file since the last Statement
of the Case. The appellant and her
representative must be afforded the
applicable time period in which to
respond.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).